Tan v Minister for Immigration and Multicultural Affairs

[2000] FCA 815

FEDERAL COURT OF AUSTRALIA

Tan v Minister for Immigration & Multicultural Affairs [2000] FCA 815

TJOEN ING TAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 287 OF 2000

LEHANE J
7 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 287 OF 2000

BETWEEN:	TJOEN ING TAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	7 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 287 OF 2000

BETWEEN:	TJOEN ING TAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	7 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant filed on 30 March 2000 an application for judicial review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal made on 19 January 2000, by which the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal's reasons for its decision record that the Tribunal gave its decision orally at the conclusion of the hearing held on 19 January 2000. In answer to a question I put to her, the applicant accepted that the Tribunal did so, but she claims to have understood that she ought to wait for a letter from the Tribunal before taking further action by way of seeking judicial review.

2. In the circumstances which I have described, the Minister has filed a notice of objection to the competency of the application for review on the basis that no valid application for review was lodged with the Court within the period prescribed by s 478(1)(b) of the Migration Act: that is, within twenty–eight days of the applicant being notified of the decision of the Tribunal.  That is a period which, by virtue of s 478(2), the Court has no power to extend.

3. Section 430D(1) of the Migration Act deals with the cases where the Tribunal gives an oral decision on an application for review. It provides that the Tribunal must give the applicant and the Secretary a copy of the statement prepared under s 430(1) within fourteen days after the decision concerned is made. There is evidence before me that the Tribunal complied with that obligation by despatching a copy of the statement to the applicant's address for service on 20 January 2000. Section 430D(1) provides also that the applicant is taken to be notified of the decision on the day on which the decision is made. The evidence thus is that the Tribunal complied with its obligations in relation to notifying the applicant of its decision; that the decision was, in any event, given orally at the conclusion of the hearing of the application for review; and that the applicant was present and understood that a decision was made at that time.

4. In those circumstances, the effect of the Act is quite clear.  The applicant is taken to have been notified of the decision on 19 January 2000 (the date of the hearing before the Tribunal) and the Court could entertain an application for review only if that application were lodged with a registry of the Court within twenty–eight days of that day (s 478(1)(b)).  The present application was lodged after the expiry of that period.  Accordingly, the objection to competency must succeed and the application for an order of review must be dismissed for want of competency.

5. The Minister seeks an order for payment of his costs.  The fact that the applicant is not in a position to meet such an order is not, of itself, a ground for refusing to make it.  There is, I think, no basis for refusing the Minister's application; accordingly, I order additionally that the applicant pay the Minister's costs of the application for judicial review.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             4 July 2000

Counsel for the Applicant:	The applicant appeared in person, with the assistance of an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 June 2000
Date of Judgment:	7 June 2000